Ka Wai Ola - Office of Hawaiian Affairs, Volume 32, Number 8, 1 August 2015 — 2 decisions that changed the flow of the constitutional river ... [ARTICLE+ILLUSTRATION]

2 decisions that changed the flow of the constitutional river ...

A loha Mai Kākou! This Ē 1 month, I share two decisions that changed ī 1 the course of our Conī lstitutional River . . . our River of Life as Hawaiians . . . Decision One: Rice v. Cayetano On Feb. 23, 2000, the U.S. Supreme Court issued an opinion. The case challenged the constitutionality of elections for OHA trustees. OHA trustees had been elected by Native Hawai-

ians registered to vote in OHA elections. When the Court ruled it was unconstitutional, the State opened OHA elections to all voters . . . Facts of the Case: OHA administers programs to benefit two subclasses of Hawaiian citizenry, "Hawaiians" defined as descendants of not less than one-half part of the races inhabiting the Islands before 1778, and "native Hawaiians" defined as descendants of the peoples inhabiting the Hawaiian Islands in 1778. "Hawaiians" may vote in statewide eleetion for the trustees. Harold Rice, born in Hawai'i, did not have the requisite ancestry to be a "Hawaiian" under State law. When his application was denied, he sued Gov. Ben Cayetano, claiming the voting exclusion was invalid under the 14th and 15th Amendments. QUESTION before the U.S. Supreme Court: Does the Hawai'i Constitution, whieh limits the right to vote for the Trustees of the Office of Hawaiian Affairs to qualified "Hawaiians," violate the 15th Amendment by creating a race-based voting qualification? DECISION of the U.S. Supreme Court: In a 7-2 opinion by Justice Anthony Kennedy, the Court held "Hawaii's denial of Rice's right to vote in OHA Trustee eleetions violates the Fifteenth Amendment" in creating a race-based voting qualification. The Court rejected the State's argument that the voting limitation was one based on ancestry and not race. In dissent, two justices said the majority's decision "rests largely on the repetition of glittering generalities that

have a little, if any, application to the compelling history of the State of Hawaii." - Capsun Poe, Sec. to the Board of Trustees. Question: Will there be another LAWSUIT? Hawaiian leaders Walter Ritte and Andre Perez expressed "grave concerns" over the nation-building path OHA has chosen. "I am totally opposed to this idea of giving four individuals the reins to steer the eanoe. I find it disturbing that we're considering

giving Na'i Aupuni $2.8M ... we can't build our nahon on SAND! We need a solid FOUNDATION!" Decision Two: The PA8H Decision ... Victory in 1995! The Hawai'i Supreme Court ruled on Article 12 sec. 7 and HRS 1-1 and 7- 1 of the State Constitution, whieh relates to Hawaiian rights to Cultural Practices. "This decision recognized the traditional relationship Native Hawaiians have with the land and the importance of maintaining that relationship. Native Hawaiian Rights cannot be regulated out of existence by unreasonable or burdensome laws, permits or fees. In other words, the State (BLNR) does not have the right to make departmental rules that would cause cultural practices to be extinguished if they were broadly enforced." - Native Hawaiian Legal Corporation. Even with the PASH law, the State BLNR decided to "Approve" Emergency Rules after eight hours of testimony, mostly in opposition. These rules prohibit camping on the mountain and restrict access at night. Mahalo to Joshua Lanakila Mangauil and Ho'okahi Kanuha for their leadership. Now, we must await the decision by the Hawai'i Supreme Court ... regarding TMT. On June 5, 2015, the Hawai'i Supreme Court ordered the Thirty Meter Telescope court case be transferred from the Intermediate Court of Appeals to the Hawai'i Supreme Court for its review . . . and so we eonhnue to wait . . . and wait . . . and wait . . . A hui hou! Trustee Lei Ahu Isa ■

Leina'ala Ahu lsa, Ph.D. TrustEE, At-largE